People v. Wilson

• Decision Date: 19 January 1897
• Parties: PEOPLE v. WILSON.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 403

45 N.E. 862

PEOPLE

v.WILSON.

Court of Appeals of New York.

Jan. 19, 1897.

Appeal from supreme court, appellate division, First department.

Harry Wilson was convicted of burglary, and from a judgment of the appellate division (40 N. Y. Supp. 107) affirming the conviction, he appeals. Affirmed.

The defendant was convicted in the court of general sessions of the peace in and for the city and county of New York of the crime of burglary in the second degree, as a second offense. The indictment contained three counts. The first count, after alleging the previous conviction, charged the defendant with burglary in the first degree, second offense, in having forcibly entered the dwelling house of one Frances M. Barnes, in the nighttime, with intent to steal her property, and that he was assisted by a confederate, one William King. The second count charged the defendant with grand larceny in the first degree, second offense, in having, at the time and place designated in the first count, stolen jewelry and other personal property of Mrs. Barnes. The third count charged the defendant with criminally receiving stolen goods, as a second offense, being the same property described in the second count, and knowing the same to have been stolen. The conviction of the defendant was affirmed by the appellate division of the supreme court in the First department, and from the judgment of affirmance the present appeal is taken.

Bartlett and Martin, JJ., dissenting.

Francis L. Wellman, for appellant.

John D. Lindsay, for the People.

GRAY, J. (after stating the facts).

Aside from the reporter's memorandum at the foot of the opinion rendered in the appellate division, nothing in the appeal book shows whether the affirmance of the judgment upon the verdict was by a unanimous decision of the court or not. But a consideration of the evidence satisfies us that it was sufficient to support the verdict of the jury, and the opinion which was filed upon the affirmance in the appellate division carefully and satisfactorily reviews all the material questions in the case except one, to which reference will hereafter be made. The opinion of the court, with great elaboration and clearness, discusses the evidence which was relied upon to establish the guilt of the defendant and the questions of law which arose upon the rulings of the trial judge. Upon the question of whether the evidence was such as to satisfy the requirement of the law, that the possession by the defendant of a portion of the stolen property was a conscious and an exclusive possession, the opinion states the true rule. A diamond, which, according to the evidence given by the prosecution, was one of the articles stolen from Mrs. Barnes' house, was found by a police officer in one of the bureau drawers in the bedroom of the defendant's apartment. The drawer contained only articles of man's attire, and the diamond was found in a small purse under a newspaper, covering the bottom of the drawer. It is contended in behalf of the defendant that, as the defendant shared his apartment with two white women, that fact militated against the inference of an exclusive possession by the defendant. But the contention is without force when we consider the circumstances connected with the place and mode of concealment of the stolen property, and especially when we consider also the fact that when the defendant was arrested he was in the company of the man charged to have been his confederate, and upon whose person another diamond, part of the stolen property, was found concealed. There was enough in the evidence to throw upon the defendant the burden of explaining to the jury the possession of the property, as the opinion below well held. The rule of law is well settled that no presumption of guilt can be raised from the possession of stolen property, except where the possession is shown to be conscious and exclusive on the part of the defendant. This latter fact must be established, but, in the present case the circumstances, as shown by the evidence for the prosecution, were such as to fairly furnish to the jury an inference of a conscious and exclusive possession, which no evidence on the part of the defendant in this record goes to repel.

The important question in this case which we are called upon to consider arises upon the mdictment. The defendant demurred to it for charging more than one crime, within the meaning of section 278, 279, Code Cr. Proc. The demurrer was disallowed, and the defendant was required to plead. The appellate division refused to consider the objection to the indictment upon the ground, as expressed in the opinion, that the objection was not taken at the trial, nor presented in such form as to enable it to be considered. In this the learned justices below were mistaken, and have failed to apprehend the force of those provisions of the Code of Criminal Procedure which bear upon the subject of an appeal from a judgment of conviction. Section 485 of that Code requires the clerk to annex to the judgment roll, upon a conviction, the indictment, and a copy of the minutes of the pleading or demurrer. Section 517 provides that upon the appeal which is allowed to the defendant to the supreme court from the judgment on a conviction any actual decision of the court in an intermediate order or proceeding, forming a part of the judgment roll, as prescribed by section 485, may be reviewed. This provision imposes upon the supreme court the duty of reviewing the determination made upon the demurrer to the indictment; and the same duty is imposed upon us by section 519, which provides for an appeal to this court from a judgment of the supreme court affirming the judgment of conviction. The Code of Criminal Procedure does not seem to require that the objection once taken by demurrer to the indictment should be also raised in some form after the trial has been entered upon. It was before the supreme court upon the defendant's appeal, and, as its judgment must be deemed to comprehend the review of the determination upon the demurrer, that question is also before us upon this appeal. The question, then, is whether this indictment was invalidated by reason of an improper joinder of crimes. Section 278 of the Code of Criminal Procedure provides that ‘the indictment must charge but one crime, and in one form, except as in the next section provided.’ The next section provides that, ‘where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.’ In this indictment the defendant is charged in the first count with the crime of burglary, in forcibly entering the dwelling house of Mrs. Barnes, with intent to steal her property, assisted by a confederate. He is charged in the second count with grand larceny, committed at the same time and place; and in the third count he is charged with the crime of receiving the property described in the second count, knowing it to have been stolen. So far as the counts for burglary and for grand larceny are concerned, their joinder in the same indictment seems...